Monsour v. Farris

• Decision Date: 23 May 1938
• Docket Number: 33238
• Citation: 181 So. 326,181 Miss. 803
• Court: Mississippi Supreme Court
• Parties: MONSOUR v. FARRIS et al

181 So. 326

181 Miss. 803

MONSOUR v. FARRIS et al

No. 33238

Supreme Court of Mississippi

May 23, 1938

Division A

1. ABATEMENT AND REVIVAL.

Under Louisiana statute, a cause of action for injuries in favor of automobile guest which arose out of accident which occurred in Louisiana, survived for period of one year after his death, to his wife and minor child as sole beneficiaries thereof to exclusion of other adult children (Rev. Civ. Code La., art. 2315).

2. ABATEMENT AND REVIVAL.

Under Louisiana law, no right accrued to estate of automobile guest who died after commencement of suit against owner of automobile for injuries received in accident which occurred in Louisiana on account of physical pain and suffering and other damages sustained by guest by reason of injury sued for (Rev. Civ. Code La., art. 2315).

3. ABATEMENT AND REVIVAL.

Under the common and civil law of Louisiana, a right of action for a personal Injury is abated by the death of the injured person, subject to exception in statute, whether such person dies from the injury or from some other cause and regardless of whether he has instituted suit to recover damages (Rev Civ. Code La., art. 2315).

4. ABATEMENT AND REVIVAL.

Under Louisiana law a cause of action for personal injury is not Inheritable, but survives only by virtue of statute in derogation of common and civil law of Louisiana (Rev. Civ Code La., art. 2315).

5. ABATEMENT AND REVIVAL.

The Louisiana statute relating to survival of cause of action for personal injuries must be strictly construed (Rev. Civ. Code La., art. 2315).

6. LIMITATION OF ACTIONS.

A statute which creates a cause of action not known to the common law and fixes a time within which an action must be commenced thereunder is not a statute of limitation, but the right given thereby is a conditional one and the commencement of the action within the time fixed is a condition precedent to liability under the statute, the time prescribed being an integral part of the statute and the completion of the time prescribed completely extinguishing the cause of action.

7 DEATH.

The failure of the widow and minor child of an automobile guest to exercise right to prosecute cause of action for personal injuries received in automobile accident which occurred in Louisiana which had belonged to automobile guest during his life, within one-year period prescribed by Louisiana statute would effect an absolute lapse of the right, the stipulated time not being a mere prescription (Rev. Civ. Code La., art. 2315).

8. ABATEMENT AND REVIVAL.

Although the court in which was pending an automobile guest's action for injuries received in automobile accident in Louisiana had jurisdiction to revive suit after death of guest, court was without authority to do so in the name of administrator of the estate of the guest or to authorize him to prosecute a cause of action, which under Louisiana statute accrued alone to the wife and minor daughter of the guest instead of to the estate or to all the heirs (Rev. Civ. Code La., art. 2315).

9. AUTOMOBILES.

Under Louisiana law, an automobile owner's invitation to a guest to ride in an automobile on which the tires had been driven 17,000 miles did not constitute "negligence" or involve an unreasonable risk of harm for which owner would be liable for injuries received by guest when tire blew out, in absence of proof that tires contained any apparent defects or defects which could have been discovered by the owner in the exercise of ordinary care, notwithstanding that owner knew that his tires were worn and weak as compared with condition of newer tires.

10. AUTOMOBILES.

A motorist is not liable for injuries to guest which are the result of a defect in the vehicle not known to the motorist, but the motorist is liable only for active negligence which increases the hazard or creates a new one.

11. AUTOMOBILES.

A person gratuitously transported in an automobile whether at his request or at the owner's Invitation assumes all ordinary risks of injury incident to automobile travel.

12. AUTOMOBILES.

The risk of riding on tires which had been used for approximately 17,000 miles and which had no apparent defects discoverable by owner of automobile in exercise of ordinary care was "ordinary risk of automobile travel" which was assumed by guest, precluding recovery for injuries received by guest when tire blew out.

13. EVIDENCE.

It is common knowledge that tires which have been used for a considerable distance and which are weak as compared with new tires but which have no apparent defects discoverable by the owner in the exercise of ordinary care may be found on a large percentage of automobiles in constant use by persons in the more humble stations of life.

HON. ARTHUR, G. BUSBY, Judge.

APPEAL from the circuit court of Lauderdale county, HON. ARTHUR G. BUSBY Judge.

Action for injuries received in an automobile accident by Joe Farris against E. A. Monsour, wherein Mrs. Mary Farris and others were substituted as plaintiffs after the death of the original plaintiff. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

Reversed and judgment here.

Jacobson & Snow, of Meridian, for appellant.

This suit is for injury and damages sustained in an alleged tort or negligence in an automobile accident in the State of Louisiana, and the substantive rights of the parties are governed by the laws of the State of Louisiana, where the accident occurred.

Mangum v. Reid, 178 Miss. 352, 173 So. 284; Green v. Maddox, 168 Miss. 171, 149 So. 882; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415; Sharpies v. Watson, 157 Miss. 236, 127 So. 779; Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126, So. 395; Railroad v. Williams, 102 Miss. 735, 59 So. 883; Restatement of Law, Conflict of Laws, pages 478 to 484.

Under the laws of Louisiana the administrator of a deceased person has no right of action for damages for an injury causing death, and an administrator cannot maintain such action in Mississippi for the wrongful death of his intestate in Louisiana.

Article 2315, Revised Civil Code of Louisiana.

The original suit was filed by Joe Farris in his lifetime, and after his death, could only be maintained by his beneficiaries under the laws of the State of Louisiana, to-wit, Mrs. Mary Farris and Victoria Farris, her minor daughter, in an action instituted within one year from his death, which occurred on June 7, 1935. The amendment filed on October 29, 1936, stated a new cause of action, and the new cause of action could not be brought under the laws of the State of Louisiana because it was filed more than one year after the death of the decedent, Joe Faris.

Article 2315, Revised Civil Code of Louisiana; Louisville & Nashville R. R. Co. v. Dixon, 168 Miss. 14, 150 So. 811; Dunn Construction Co. v. Bourne, 172 Miss. 620, 159 So. 841; Currie v. Credit, 176 So. 723; Miss. Central R. R. v. Maples, 107 Miss. 720, 65 So. 644; Brister v. Wray-Dickerson Co., Inc., 159 So. 430; Guillory v. Avoyolles Ry. Co., 104 La. 11, 28 So. 899; Illinois Central R. R. Co. v. Wales, 177 Miss. 875, 171 So. 536; Cox v. Mortgage Co., 88 Miss. 88, 40 So. 739; Reed v. Warren, 136 So. 59; Kerner v. Trans-Mississippi Terminal R. R. Co., 158 La. 853, 104 So. 740; Baltimore & Ohio Southwestern R. R. Co. v. Carroll, 280 U.S. 491, 74 L.Ed. 566; Clark v. G. M. & N. R. Co., 132 Miss. 627, 97 So. 185; Travelers' Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339; Orleans Dredging Co. v. Frazie, 173 So. 431; Mo. K. & T. R. R. Co. v. Wulf, 226, U.S. 570, 57 L.Ed. 355, 33 S.Ct. 135; Central Railroad of Georgia v. Jones, 108 S.E. 618; Ford, Bacon & Davis, Inc. v. Valentine, 64 F.2d 800.

The court below erred in not affording appellant his rights under the demurrers to the amended declaration and special pleas to the declaration after the demurrers were overruled, under Article 4, Section 1, of the Constitution of the United States, declaring that full faith and credit should be given in each state to the public acts of every other state.

John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178. 81 L.Ed. 106.

There can be no recovery in this suit for any money expended by the beneficiaries for hospital, doctor and drug bills for the decedent Joe Farris.

Freibert v. Sewerage and Water Board of New Orleans, 159 So. 767; Article 2315, Revised Civil Code of Louisiana.

The court below erred in refusing to grant the appellant the requested peremptory instructions.

Person gratuitously transported in motor vehicle, whether at their request or at owner's or authorized driver's invitation, assumes all ordinary risk of injury incident to automobile travel.

Green v. Maddox, 168 Miss. 172, 151 So. 160; Gower v. Strain, 169 Miss. 344, 145 So. 244; Banta v. Moresi, 119 So. 901; Smith v. Roueche, 153 So. 487; Christos v. Manos, 134 So. 741; Ferry v. Holmes & Barnes, Ltd., 124 So. 848; Lasseigne v. Kent, 142 So. 867; 4 Blashfield, Cyclopedia of Automobile Law and Practice, pages 336 and 337, sec. 2515; Higgins v. Mason, 174 N.E. 77; Kemp v. Stephenson, 247 N.Y.S. 650; Galbraith v. Bosch, 196 N.E. 36, 267 N.Y. 230; O'Shea v. Lavoy, 20 A.L.R. 1008; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236.

The scintilla of evidence rule is not recognized in Mississippi, but verdicts must be based on substantial and reasonably believable evidence.

Y. & M. V. R. Co. v. Lamensdorf, 178 So. 80; Y. & M. V. R. Co. v. Skaggs, 179 So. 274; Teche Lines, Inc. v. Bounds, 179 So. 747; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; Great A. & P. Tea Co. v. Davis, 177 Miss. 56,2, 171 So. 550; Gunning v. Cooley, 281 U.S. 90, 74 L.Ed. 720.

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